Politically motivated removals from public employment

Politically motivated removals from public employment
Coogan v Smyers, et al, CA2, 134 F.3d 479

In a series of rulings concerning the removal of public employees for political reasons, the U.S. Circuit Court of Appeals, Second Circuit [New York] set out a number of tests and guidelines it uses to determine if a particular termination is Constitutionally permissible. The Coogan case involved the termination of a City Clerk by a City Council.

James A. Coogan, who had served as Tonawanda’s City Clerk for five consecutive two-year terms, sued members of the City of Tonawanda after the new Republican council majority decided not to reappoint him for another two-year term.

According to Coogan, the Council’s action was motivated by his political activities on behalf of the Democratic Party. Claiming that his civil rights were violated, Coogan filed his action pursuant to 42 USC 1983 and argued that the Council’s action violated his First and Fourteenth Amendments rights.

The Circuit Court of Appeals reversed a federal District Court judge’s dismissal of Coogan’s petition and remanded the matter to the lower court for its further consideration. The Circuit Court pointed out that:

1. As a general rule, a public employee is protected from adverse employment decisions based upon the employee’s exercise of his or her First Amendment rights.

2. Political patronage or party affiliation is impermissible reasons for dismissing government employees absent a showing that “party affiliation is an appropriate requirement for the effective performance of the public office involved.”

3. While there is no property interest or entitlement to be reappointed to a government position, failure to reappoint solely because of party affiliation is impermissible.

Ironically, the Tonawanda City Clerk’s position historically has been one filled through political patronage. While the Court conceded that Coogan himself may have enjoyed a patronage appointment, this fact is irrelevant: a history of patronage does not render the practice Constitutional.

Coogan claimed that the only legal way to take away his job was to have reasons relating to his job performance. The Circuit Court said this was simply incorrect. The only Constitutional limit placed on a city council’s appointment power is that it may not make employment decisions based upon an employee’s protected conduct.

In cases of this type, courts frequently use a “burden-shifting” test. This requires that the individual first establish, by a preponderance of the evidence, that:

(1) his or her political activities constituted a substantial or motivating factor in the employment decision; and

(2) his or her conduct on behalf of a particular political party was constitutionally protected. If the individual is able to do this, the burden of going forward shifts to the employer, which must prove by a preponderance of the evidence that it would have made the same employment decision notwithstanding the individual’s protected conduct.

A critical element in this case was the parties’ stipulation that the City Clerk’s position is a non-policymaking and non-confidential government position. Therefore, political party affiliation could not be required for effective service as City Clerk. On this point the Court referred to the U.S. Supreme Court’s decision in Branti v Finkel, 445 U.S. at page 518.

Also, the Court emphasized the significance of the fact that the City Clerk’s position was not tenured -- it carried a two-year term. Coogan was merely a “prospective employee” and he had no property right or entitlement to the position or reappointment to it.

Accordingly, the Council was not required to “show cause” for failing to reappoint him. The Constitutional prohibition on patronage dismissal “does not give a permanent appointment to the City Clerk.” The legislative body is always free to dismiss or fail to rehire the Clerk for legitimate, apolitical reasons.

However, if a nontenured employee like Coogan shows there was unlawful political motivation in the failure to reappoint, the burden shifts to the legislative body to show a lawful reason for its decision. The Circuit Court said that if a public employer has two reasons for an employment decision, one lawful (e.g. incompetence) and one unlawful (e.g. removing a person because of some Constitutionally protected speech he or she made), the employment decision may be upheld on the basis of the lawful reason. The Court called this the “dual-motive” test.

The Circuit Court agreed with the District Court that Coogan’s political activity and affiliation were “a substantial or motivating factor” in the Council’s decision not to reappoint him.

But the Circuit Court disagreed with the District Court’s conclusion that the Council “presented sufficient evidence to demonstrate that they would not have reappointed Mr. Coogan regardless of his active participation in the Democratic Party.”

The Circuit Court decided that “the present record is inadequate” to enable it determine if the Coogan would have been denied reappointment regardless of his political affiliation or activity. Therefore, it remanded the case for further findings of fact by the trial court. The District Court was directed to analyze the reasons underlying the reasons given by the individual Council members for their votes concerning Coogan’s reappointment.

In another decision handed down by the U.S. Circuit Court of Appeals, Second Circuit, Danahy v. Buscaglia, 134 F.3d 1185, the Court said that a public employer was entitled to a qualified immunity from law suit for patronage dismissals if the employer was reasonable in making its decision with respect to whether or not the employees terminated qualified as “the kind of policymaking and confidential employees who may be lawfully dismissed because of their political views.”

The case involved the dismissal of seven former employees of the Attorney General’s Medicaid Fraud Unit who claimed that their terminations were politically motivated in violation of their First Amendment Rights.

The full text of the decision may be found at:
http://nypublicpersonnellawarchives.blogspot.com/ [Registration required]

Sick building syndrome

Sick building syndrome
Knapp v Vestal CSD, App Div, 247 A.D.2d 667,

From time to time there are reports of individuals becoming ill because of the quality of a building’s environment. This can result in the filling of a workers’ compensation claim.

Donna K. Knapp, a music teacher employed by the Vestal Central School District, filed such a complaint. She claimed that her health began to deteriorate after working in the Vestal Central School District’s African Road School for about a year.

Knapp said that her symptoms included “aches and pains, headaches and memory and hearing loss.” Initially diagnosed as suffering from “sick building syndrome,” she was later diagnosed as having “multiple chemical sensitivity.”

Contending that the African Road School was a “sick building,” Knapp applied for workers’ compensation benefits. Ultimately the Workers’ Compensation Appeals Board disallowed Knapp’s claim, ruling that the record did not demonstrate any “unusual workplace hazard” to support her application for accidental injury due to a hazardous exposure. The Board said that there was “no evidence presented to support a recognizable link between [Knapp’s] multiple chemical sensitivity and her occupation as a teacher.”

The Appellate Division affirmed the Board’s determination. The Court observed that to prevail Knapp had to establish an unusual environmental condition or something extraordinary which caused an accidental injury even if she could not pin-point the exact date on which the event occurred.

Concluding that Knapp failed to show that she sustained an accidental injury, the Court dismissed her appeal. In so doing, the Appellate Division commented that Knapp’s theory that the African Road School was “a sick building” was undercut by the fact that she admitted that she experienced similar symptoms at other locations.

In contrast, the Appellate Division ruled that the Workers’ Compensation Board’s decision that New York City school teacher Morris Palevsky suffered a “posttraumatic stress disorder” as a result of his being injured in the course of a fight between students at a school for emotionally disturbed children was supported by evidence in the record and dismissed the City’s appeal from urging a reversal of the Board’s ruling [Palevsky v New York City Board of Education, 246 AD2d 836, lv to appeal dismissed, 92 NY2d 876, lv denied, 93 NY2d 818) ].

Report alleges NYS Department of Corrections’ former Food Production Center director violated the Public Officers Law

Report alleges NYS Department of Corrections’ former Food Production Center director violated the Public Officers Law
Source: The Office of the State Comptroller

The former director of the State Department of Corrections’ (DOCS) prison food production operation and his staff routinely traded favors and gifts with favored businesses that were rewarded with millions of dollars in state purchases according to a report released by State Comptroller Thomas P. DiNapoli and State Inspector General Joseph Fisch dated August 31, 2010.

DiNapoli’s and Fisch’s audit and investigation centered on Howard Dean, the former director of the Food Production Center, and his staff. The Comptroller's Office said that DiNapoli and Fisch have forwarded the findings of their report to the Oneida County District Attorney’s Office and the State Commission on Public Integrity.

Comptroller DiNapoli said “Corruption should never be tolerated on any level. But the abuses we discovered here, at a state criminal justice agency, committed at a time when New York’s taxpayers are finding it harder and harder to make ends meet, are beyond the pale. And all of this mushroomed in a culture of acceptance at DOCS. We’re referring our findings to law enforcement and public integrity officials.”

State's Inspector General Fisch commented that “Once again, we witness another distressing spectacle by this public official who did not hesitate to violate the law and his oath of office in order to reap personal reward and benefits. For 13 years, Dean enjoyed free parties and picnics while not only steering $2.5 million in business to favored vendors, but to vendors who are prohibited from doing business in New York State.”

Among the findings:

1. In violation of the State's Public Officers Law, "for at least 13 years, Dean and other DOCS staff were provided free meals by at least two vendors – Global Food Industries (GFI) and Good Source – that had $2.5 million annually in purchases with the Food Production Center. "

"2. Dean directed Sysco Food Services to use these two vendors as suppliers, thereby guaranteeing them $1.7 million annually in business with DOCS.

"3. Sysco’s purchase of products from the South Carolina-based GFI at Dean’s direction helped Dean and GFI skirt around New York State Finance Law which prohibits state agencies from doing business directly with companies that reside in states, like South Carolina, that discriminate against NYS businesses.

"4. Likewise, Dean directed NYS Industries for the Disabled, a preferred source of state purchases, to purchase products from GFI, again allowing GFI to make money off of state purchases contrary to the law. GFI made $796,000 annually through this arrangement.

"5. Dean and his staff solicited free food and donations from vendors for an annual Christmas party and a three-day-long annual picnic. Any left-over moneys were deposited in an employee benefit fund and used for food production center employee benefits throughout the year, including morning bagels.

"In addition, the Comptroller and the Inspector General stated that 'Vendors often bid on donated items with proceeds going to the employee benefit fund. All Correctional Services employees, including those at the highest levels of the organization, were invited to the picnic at no cost. Management should have questioned how such an event could be hosted by a state agency at no cost to employees or their families.'"

"DiNapoli’s auditors found no documentation demonstrating that millions of dollars in purchases were based on open competition. In fact, one favored vendor was tipped off about the potential missing ingredient essential in the production of cheese sauce the Food Production Center wished to utilize. Because none of the other vendors had this inside information, the favored vendor received the state’s business.

"Internal controls that might have prevented Dean from engaging in this conduct were virtually non-existent at DOCS. One supervisor, Russell DiBello, former Correctional Services Chief Fiscal Officer, stated that he saw no need to monitor Dean – despite that Dean managed a $55 million budget – because he received no inmate complaints about food.

"DiNapoli and Fisch have recommended that DOCS officials institute safeguards to ensure these abuses don’t occur in the future, and assist the Oneida County District Attorney and the State Commission on Public Integrity as needed. State law requires the DOCS commissioner to report to the Governor, Comptroller and leaders of state legislative committees what corrective action the department has taken, and if action is not taken, why."

The complete text of the report is posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093010/09s6.pdf
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Commissioner rules excessed teacher’s failure to request or indicate any assumption of the teacher’s retention on the preferred list a fatal omission

Commissioner rules excessed teacher’s failure to request or indicate any assumption of the teacher’s retention on the preferred list a fatal omission
Appeal of Staci Beauchamp and the City School District of the City of Glen Cove and Melanie Tuthill Odone, Decisions of the Commissioner of Education, Decision #16,123

Staci Beauchamp appealed the decision of the Board of Education of the City School District of the City of Glen Cove to appoint Melanie Tuthill Odone as a reading teacher. Beauchamp, a tenured reading teaching, accepted a .4 part time reading teacher position when she was advised that her full time position was being abolished effective September 1, 2006.

Although Beauchamp initially had accepted the .4 part time appointment on June 13, 2006, she submitted her resignation from the position on June 23, 2006. The Commissioner’s decision indicates that the Board subsequently “accepted” the resignation.*

In early 2009, Beauchamp learned of a reading teacher vacancy in the district. In response to her inquiry concerning the availability of the position, she was told by the Assistant to the Superintendent for Personnel that as she had resigned from her [part time] position, “she did not qualify for reappointment.”

Tuthill Odone was subsequently hired to fill the reading teacher position and ultimately the issue was appealed to the Commissioner.

Beauchamp argued that she had been “fraudulently and/or falsely induced to resign by the board’s Executive Director of Human Resources” who had told her that “a resignation was a condition precedent to working in another school district and remaining on the preferred eligibility list in Glen Cove.”

The district, on the other had, contended that Beauchamp relinquished all rights to a teaching position in the district when she submitted her unconditional resignation and “that at no time did any agent or employee of the board make any false statement to [Beauchamp] in order to induce her to resign her teaching position.”

The Commissioner rejected Beauchamp’s appeal commenting that “it is clear that a teacher who severs his or her service with a district, through retirement or resignation, no longer has recall rights pursuant to Education Law §§2510 and 3013” [citations omitted].

Further, said the Commissioner, “[A]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted by school authorities,” citing Schmitt v. Hicksville UFSD No. 17, 200 AD2d 661.

The Commissioner said that Beauchamp did not prove that her resignation was involuntary and although the Executive Director’s alleged false statement may have provided motive for her resignation, “it cannot be said that her will was overcome and that she was not capable of exercising free choice.” Thus, the Commissioner ruled, Beauchamp’s allegations of duress and coercion must be dismissed.

The Commissioner also rejected Beauchamp’s claim that her resignation was a nullity because it was entered into under a mutual mistake of fact, i.e. that “she had to resign to work elsewhere and be placed on the school district’s preferred eligibility list.”

Significantly, the Commissioner said the Beauchamp failed to demonstrate that there was a mutual mistake of fact and that the school district justifiably assumed that she, “by submitting a letter of resignation, wished to sever her ties with the district” as her letter of resignation did not indicate that “she wished to remain on the preferred eligibility list, or indicate any expectation that she would so remain.”

* Except where required by law, acceptance of a resignation is not required for it to take effect; all that is required is that the resignation be delivered to the appointing authority before it is withdrawn or rescinded by the officer or employee. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district "and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied]. See, also, §2110.3 of the Education Law.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16123.htm

COBRA web page updated

COBRA web page updated
DOL press release

The Department of Labor's Employee Benefits Security Administration has updated its COBRA web page to add a fact sheet and FAQs on maintaining health coverage after the COBRA premium reduction ends. The updates are posted at:

http://www.dol.gov/ebsa/newsroom/fsExpiringSubsidy.html

and at

http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html#section5,

respectively.